0120103440
08-29-2012
Tonya C. Pearson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Tonya C. Pearson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120103440
Hearing No. 410-2009-00125X
Agency No. 4H-300-0255-08
DECISION
On August 20, 2010, Complainant filed an appeal from the Agency's July 15, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
PROCEDURAL BACKGROUND
On September 19, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (49) when: (1) since April 18, 2008, and continuing, she was subjected to a hostile work environment pertaining to her performance, leave usage, and travel expenses; (2) on July 10, 2008, she was scheduled for a Fitness For-Duty examination (FFDE)1; and (3) on August 8, 2008, she was issued a Letter of Warning (LOW).2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. On September 14, 2009, the AJ held a hearing and on July 1, 2010, issued a decision. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
FACTUAL BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor Relations Specialist, detailed as a Step B Management Representative to the Dispute Resolution Team (DRT). Complainant was assigned to the Decatur Carrier Annex in Decatur, Georgia. The Acting Manager for Human Resources in the Agency's Atlanta District (M1) was the supervisor of two DRTs in the Atlanta District, each having one permanent member (Complainant C1). C1 was assigned to the primary team based in Woodstock, Georgia. Complainant was assigned to the second team based in Decatur, Georgia. M1 worked out of the Agency's North Metro facility in Duluth, Georgia. Complainant did not work with M1 on a day-to-day basis. M1's supervision of Complainant was primarily administrative and extended to such matters as reviewing her leave requests. Complainant considered the Southeast Area Manager (M2), who was one of the national overseers of the program, to be her supervisor for work relating to dispute resolution.
Complainant testified that in late November 2007, shortly following M1's assumption of his duties, Complainant submitted her performance goals via computer to M1 who, thereafter, made changes to her core requirements without notifying her or discussing them with her. Complainant testified that M1 changed the DRT core performance objectives from the rate of Step B resolutions to the availability for duty, which added the reduction of sick leave usage as one of the objectives for all DRTs. The record shows that Complainant pushed back hard and openly expressed her disagreement with this change. Complainant states that she told M1 that she disagreed with the inclusion of an "available for duty" performance objective. M1 testified that M2 informed him that such a performance goal was to be added because one of the problems in the Atlanta District was that sick leave was at 6%, which meant that employees were using all of their sick leave that they were earning, and the sick leave usage was "out of control."
Complainant asserts that she contacted numerous management officials in the Southeast Area and at the national level to find out if M1 had the authority to change her core performance objectives. She testified that for the most part none of the managers at the headquarters level responded to her. She also claimed that finally after sending follow-up messages to M2, she was told that M1 had the authority to change core performance goals. The record shows that she continued to pursue this issue and contacted numerous management officials who held the same position as M2.
Complainant testified that she found M1's actions in changing her performance goals appalling. Complainant felt that M1 did not care about her concerns or input. According to Complainant, while she was still attempting to obtain an in-person meeting with M1 and to appeal his decision to upper management, M1 "flatly ordered" Complainant to submit her goals with the ordered changes, and Complainant complied under protest.
Complainant also asserts that in or around January/February 2008, she and M1 exchanged several contentious emails pertaining to Complainant's resolution of various grievances. Complainant also testified that generally she had difficulty obtaining M1's approval for leave requests. According to Complainant, she typically faxed in her leave slips, and M1 typically failed to respond to her requests. M1 asserts that during the relevant time-frame, his office was in disarray without a permanent secretary, and he often did not receive Complainant's faxes.
Complainant also testified that on March 24, 2008, she submitted a faxed request for four hours of personal leave from M1 because she discovered that her house was burglarized. She contends that on April 8, 2008, she discovered that M1 did not approve her personal leave request and instead charged her with eight hours of annual leave.3 M1 asserts that he did not approve Complainant's request for personal leave because the police report conflicted with Complainant's account of the incident as it related to the time she was at work on March 24, 2008. Complainant testified that she had the police report corrected, but that M1 would not change her leave.
On April 23, 2008, Complainant's physician placed her on leave due to work-related anxiety, stress, and depression. She did not return to work until July 2008. During Complainant's extended leave, she received medical treatment from a clinical psychologist (P1) and an internist (P2). Both, P1 and P2 forwarded documentation to the Agency clearing Complainant to return to work during the first week of July 2008. However, the record shows that M1, with M2's recommendation, placed Complainant on administrative leave and required that she take a fitness for duty exam (FFDE) prior to returning to work. Complainant took the FFDE and returned to work on or about July 14, 2008.
Complainant further asserts that, on July 21, 2008, she had to travel to M1's worksite to participate in an investigative interview regarding the discrepancy between the hours that she reported working on her leave slip for March 24, 2008, and the hours that the police report described her departing from and returning to her residence. Complainant maintained that she accurately reported the hours that she worked on her leave slip. On August 1, 2008, Complainant submitted a claim for reimbursement for her mileage to and from the investigative interview. Although Complainant's PS-50 listed her duty station as North Metro, where M1's office was located and the interview was conducted, she felt she was entitled to reimbursement because the Decatur Carrier Annex served as her duty station while she was on detail. Nevertheless, M1 stated that he was denying Complainant's claim for mileage because he had been informed that her duty station was North Metro. The record indicates that emails were sent debating the issue of whether Complainant was entitled to mileage compensation. On July 21, 2008, M1 sent an email requesting that Complainant answer the questions as to the location of her permanent assignment. Complainant's last response on the subject stated: "I'm not going to go back and forth with you about this subject. I stated my position, provided the reference and if it is your decision... not to properly compensate me, I will do what I need too [sic]. End of Story."
On August 8, 2008, M1 issued Complainant a LOW for "Improper Conduct/Failure to Follow Instructions." The LOW described an incident where Complainant submitted an eTravel claim for reimbursement for travel to the North Metro facility that was returned by M1 to Complainant asking for clarification. According to the letter, Complainant responded with several questions that M1 contended were inappropriate and tantamount to insubordination. Complainant responded by filing a grievance. At the time of the hearing, Complainant learned that the LOW had been withdrawn.
Complainant also asserts that since M1 arrived in the Atlanta District he has targeted Black females under his area of responsibility and demonstrated his dissatisfaction with them by treating them differently than White females and Black males. To support her contention of race and sex discrimination, Complainant provided the names of African-American females (C2, C3, C4 and C5) who she claims were harassed by M1 during the EEO investigation of her complaint.4
CONTENTIONS ON APPEAL
Complainant states that the AJ erred in finding the record devoid of evidence of race or gender animus by noting that she testified that several Black, female employees were harassed by M1. In addition, Complainant asserts that the AJ erred in concluding that Complainant failed to present sufficient evidence on the issue of pretext. Specifically, Complainant asserts that it should have been extremely difficult for the AJ to believe M1's explanation for denial of leave. In addition, Complainant asserts that since one of M1's temporary secretaries was able to quickly locate Complainant's grievance decision, M1's explanation that his office was in disarray because he had numerous in-boxes and lacked a permanent secretary prior to January 2009 was not credible. Complainant also asserts that the AJ erred in concluding that she did not present sufficient evidence to establish that she was subjected to an objectively hostile work environment. Complainant also asserts that the AJ incorrectly found that the Agency established a defense to liability.
In addition, Complainant asserts that since the record shows that M1 told another employee about Complainant's FFDE, such inappropriate behavior should have resulted in a finding of pretext and discriminatory animus with respect to Complainant's FFDE. Complainant also asserts that M1's explanation for the LOW is implausible since the use of confrontational language was a long-established practice between Complainant and M1 as of August 2008, and M1 had never previously disciplined Complainant for such conduct.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find substantial evidence supports the AJ's findings of fact. To prove her harassment claim, complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis, in this case, race, sex or age. Only if complainant establishes both of those elements, does the question of the Agency's liability for harassment present itself.
We agree with the AJ in finding that Complainant failed to prove that M1's actions were motivated by her race, sex or age. Complainant's uncorroborated assertions that other Black, female employees were harassed by M1 is insufficient evidence to support discriminatory animus. The record, at best, establishes a contentious relationship between supervisor and subordinate, but there is insufficient evidence that the contention was due to race, sex or age. For these reasons, Complainant's claim of harassment fails. Complainant failed to produce evidence that another employee pushed back as hard as she did but was treated more favorably with regard to either an FFDE or a LOW. Accordingly, we decline to disturb the AJ's decision, and we AFFIRM the Agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 29, 2012
__________________
Date
1 At no time during the investigation, hearing or appeal process has Complainant raised a Rehabilitation Act claim. We note that Complainant has been represented by an attorney from as early as the hearing stage through the appeal stage of this complaint.
2 Complainant also raised the allegation that on July 16, 2008, she was given an investigative interview. The Administrative Judge (AJ) dismissed this claim for failure to state a claim under 29 C.F.R. ��1614.103 and 1614.106(a). We affirm the AJ's dismissal and note that Complainant does not raise this issue on appeal.
3 The record shows that EAS employees were not permitted to take less than eight hours of annual or sick leave at any given time. However, "personal leave" was an option for leave that was needed for less than eight hours, such as a doctor's appointment. Personal leave was not permitted for leave greater than four hours.
4 C2, C4 and C5 advised the EEO investigator that they did not possess any information pertaining to Complainant's allegations. C3 did not return any of the EEO investigator's calls. Complainant did not call these witnesses during the EEO hearing.
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01-2010-3440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013